EA-03-031 - Testmaster Inspection Company

September 5, 2003

EA-03-081

Wendell B. Carr
President/Radiation Safety Officer
Testmaster Inspection Company
P.O. Box 31
Perrysburg, OH 43551

SUBJECT:

ORDER IMPOSING CIVIL MONETARY PENALTY – $5,500

Dear Mr. Carr:

This refers to your letter dated July 22, 2003, in response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) sent to you by our letter dated July 2, 2003. Our letter and Notice described one violation identified during an investigation by the NRC Office of Investigations (OI).

To emphasize the importance of required radiation surveys and identification of violations, a civil penalty of $5,500 was proposed.

In your response, you stated it was possible that the violation may not have occurred and you requested full mitigation of the civil penalty. You based the statement that the violation may not have occurred on your belief that a former employee provided false information to the NRC, and that he had also allegedly provided false information to other government agencies, including the U.S. Department of Labor (DOL). You made similar statements in your May 30, 2003, response to our letter of May 22, 2003.

The NRC staff described the basis for the violation in letters dated May 22 and July 2, 2003. In those letters, the staff explained that the violation was based on information obtained from more than one employee of Testmaster Inspection Company. We also reviewed the November 22, 2002, report from the DOL Occupational Safety and Health Administration (OSHA) investigation into alleged employment discrimination. Although the report concluded that the former employee did not meet his burden of proof that his complaint was the reason for the termination, no information was documented in the report to indicate that the former employee provided false information to OSHA during that investigation.

After considering the information you provided in your July 22, 2003, response to the Notice, and the information discussed above, we conclud that the violation occurred as stated in the July 2, 2003, letter and Notice, and that your response did not provide an adequate basis for withdrawing the violation, reducing the severity level, or mitigating or rescinding the civil penalty. Accordingly, we hereby serve the enclosed Order on Testmaster Inspection Company imposing a civil monetary penalty in the amount of $5,500. Within 30 days you should either: (1) pay the civil penalty in accordance with Section IV of the Order, or (2) request a hearing in accordance with Section V of the Order.

We will review the effectiveness of your corrective actions during a subsequent inspection.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and your response (if you choose to provide one) will be made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), which is accessible from the NRC Web site at the Public NRC Library. To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction. The NRC also includes Issued Significant Enforcement Actions on its Web site.

		Sincerely,
		/RA/
		James G. Luehman, Deputy Director Office of Enforcement

Docket No. 030-35090
License No. 34-24872-02

Enclosures:
1. Order Imposing Civil Monetary Penalty
2. NUREG/BR-0254 Payment Methods (Licensee only)

cc w/encl 1 only: State of Ohio, Department of Health

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UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION

In the Matter of	)
Testmaster Inspection Company Perrysburg, Ohio	) ) )	Docket No. 030-35090 License No. 34-24872-02 EA-03-081

ORDER IMPOSING CIVIL MONETARY PENALTY

I

Testmaster Inspection Company (Licensee) is the holder of Materials License No. 34-24872-02 issued by the Nuclear Regulatory Commission (NRC or Commission) August 31, 1999. The license authorizes the Licensee to perform industrial radiography using NRC-licensed materials (not to exceed 150 curies of iridium-192 and not to exceed 50 curies of cobalt-60), store NRC-licensed materials, and calibrate radiation survey instruments in accordance with the conditions specified therein.

II

The NRC Office of Investigations (OI) conducted an investigation of the Licensee's activities from July 8, 2002, to March 24, 2003. The results of this investigation indicated that the Licensee had not conducted its activities in full compliance with NRC requirements. A written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon the Licensee by letter dated July 2, 2003. The Notice states the nature of the violation, the provision of the NRC's requirements that the Licensee had violated, and the amount of the civil penalty proposed for the violation.

The Licensee responded to the Notice in a letter dated July 22, 2003. In its response, the Licensee contended the violation may have been based on false information; therefore, the violation may not have occurred. The Licensee also requested full mitigation of the proposed civil penalty.

III

After consideration of the Licensee's response and the statements of fact, explanation, and argument for mitigation contained therein, the NRC staff has determined that the violation occurred as stated and that the penalty proposed for the violation designated in the Notice should be imposed.

IV

In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, IT IS HEREBY ORDERED THAT:

The Licensee pay a civil penalty in the amount of $5,500 within 30 days of the date of this Order, in accordance with NUREG/BR-0254. In addition, at the time of making the payment, the licensee shall submit a statement indicating when and by what method payment was made, to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.

V

The Licensee may request a hearing within 30 days of the date of this Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, and include a statement of good cause for the extension. A request for a hearing should be clearly marked as a "Request for an Enforcement Hearing" and shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, D.C. 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, and to the Regional Administrator, NRC Region III, 801 Warrenville Road, Lisle, IL 60532-4351. Because of continuing disruptions in delivery of mail to United States Government offices, it is requested that requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to hearing.docket@nrc.gov and also to the Office of the General Counsel either by means of facsimile transmission to 301-415-3725 or by e-mail to OGCMailCenter.Resource@nrc.gov.

If a hearing is requested, the Commission will issue an Order designating the time and place of the hearing. If the Licensee fails to request a hearing within 30 days of the date of this Order (or if written approval of an extension of time in which to request a hearing has not been granted), the provisions of this Order shall be effective without further proceedings. If payment has not been made by that time, the matter may be referred to the Attorney General for collection.

In the event the Licensee requests a hearing as provided above, the issues to be considered at such hearing shall be:

(a)	whether the Licensee was in violation of the Commission's requirements as set forth in the Notice referenced in Section II above, and
(b)	whether, on the basis of such violation, this Order should be sustained.

		FOR THE NUCLEAR REGULATORY COMMISSION
		/RA/
		James G. Luehman, Deputy Director Office of Enforcement

Dated this 5th day of September 2003